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An attorney's duties

Guidance from Estate Advisory Group

Being an attorney is a legal responsibility, not just a favour. The Mental Capacity Act sets out what you must do and where your power stops.

Your core duties

  • Act only in the donor's best interests, not the family's or your own.
  • Assume the donor can decide unless it is established otherwise, and involve them as far as possible.
  • Follow the LPA's preferences and instructions, and the Mental Capacity Act Code of Practice.
  • Keep the donor's money separate from your own and keep records of what you spend.
  • Do not delegate your decisions, and do not take advantage of your position.

What you cannot do

  • Make large gifts. Only modest customary gifts on birthdays or at Christmas, proportionate to the estate — anything more needs Court of Protection approval.
  • Change the donor's will, or use the LPA after the donor dies.
  • Make health decisions under a financial LPA, or spend money under a health and welfare LPA.
  • Decide on life-sustaining treatment unless the donor gave that power in the LP1H.

Supervision and consequences

The OPG can investigate

The Office of the Public Guardian investigates concerns about attorneys and can apply to the court to remove one. Misuse of a donor's funds can lead to repayment orders and, in serious cases, prosecution.

Our signing pack includes a short plain-English briefing for each attorney, so nobody signs without knowing what they are taking on.

Common questions

Can an attorney be paid?

Lay attorneys can reclaim reasonable expenses but cannot charge for their time unless the LPA authorises it.

Can an attorney resign?

Yes. They complete a disclaimer form and notify the donor and the OPG. This is why replacement attorneys matter.

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This is general information about how Lasting Powers of Attorney work in England and Wales. It is not legal advice about your situation. What we do and do not do.

Published by Estate Advisory Group